Insight and Commentary on Business Legal Issues

Don’t let the Cloak of Anonymity Prevent You from Bringing Suit Against the Poster of Defamatory Material on the Internet

The Internet, through the hundreds, if not thousands, of complaint boards and review websites, such as ripoffreport.com, has provided an effective means to bad-mouth and degrade a company, or its principals, while reaching an audience of millions of people, and simultaneously being protected by a cloak of anonymity. However, this cloak of anonymity is not impervious. If defamatory or libelous material is being posted about you, or your company, then you may obtain the identity of the individual posting such material (the “Poster”) from the website providing the medium on which the material is posted.

By filing what is commonly referred to as a “John Doe suit,” you can compel a website or internet service provider to fork over the Poster’s identity. Although often executed, this is not as simple as merely filing suit and listing John Doe and the website or posting medium as defendants, and then asking the website or posting medium to divulge the Poster’s identity through discovery requests.

Rather, as the party requesting the information/identity of the Poster, you must show that you have made reasonable efforts to inform the Poster of the pending discovery request, including the pertinent case information, and inform the Poster of the right to timely and anonymously file and serve a response to the request. You must also attempt to notify the Poster via the same medium used by that Poster.

Further, you must establish that your action would likely survive a motion for summary judgment, regardless of the Poster’s identity, and that the balancing of the interests of the parties weighs in favor of divulging the Poster’s identity. Courts will not allow somebody to abuse the system and use a John Doe suit merely to circumvent a speaker’s First Amendment right to anonymous speech, unless the appropriate circumstances are present.

Keep in mind that the ability to discover the Poster’s identity may not always be as important as bringing an end to the Poster’s behavior and requiring the website to take down the defamatory and libelous information. However, in some cases knowing the identity of the Poster is crucial, for example, the case of an ex-employee who is violating the terms of their non-compete agreement.

Don’t get me wrong, the prevalence and influence of these complaint boards has its advantages, as these websites have helped uncover scams and can provide the consuming public with important information. However, inherent in such prevalence and influence is the danger of abuse and utilization for improper motives. Bad reviews can cause serious damage to a business above and beyond a decrease in revenue, such as hindering investors and lenders who find these reviews during their due diligence process. The good news is that there is a remedy, and it goes by the name of Doe.